R. v. Baruca and O’Brien, 2022 BCPC 114

Citation: R. v. Baruca and O’Brien 2022 BCPC 114 Date: 20220422 File No: 255128-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. DARIO ANTONIO BARUCA AIDEN JOSEPH O'BRIEN RULING RE APPLICATION FOR STAY OF PROCEEDINGS OF THE HONOURABLE JUDGE J. OULTON Counsel for the Crown: P. Mann, S. Paulson Counsel for the Accused Baruca M. Swartz, V. de Jong Counsel for the Accused O’Brien: T. Lagemaat Place of Hearing: Vancouver , B.C. Date of Hearing: April 22, 2022 Date of Judgment: April 22, 2022

[ 1 ] THE COURT: Introduction [ 2 ] Information 255128 has 11 counts. Mr. Baruca and Mr. O'Brien are jointly charged with four counts: two counts of unlawfully importing an analogue of fentanyls into Canada on or about November 24, 2017, to Coquitlam and Burnaby, and two counts of possession for the purpose of trafficking in an analogue of fentanyls in Coquitlam and Burnaby on or about November 24, 2017. [ 3 ] The remaining seven counts on the information charge Mr.

Baruca with unlawfully importing an analogue of fentanyls into Canada on or about November 16, 2017; unlawfully importing an analogue of fentanyls into Canada on or about November 21, 2017; possession for the purpose of trafficking of an analogue of fentanyls on or about November 25, 2017; unlawfully importing opium into Canada on or about November 24, 2017; possession for the purpose of trafficking of opium on or about November 25, 2017; unlawfully importing opium into Canada on or about October 30, 2017; and unlawfully importing opium into Canada on or about November 27, 2017. [ 4 ] To summarize, Mr.

Baruca is charged with 11 offences between October 30 and November 27, 2017, a four-week period, and Mr. O'Brien is charged with four offences, all alleged to have taken place on November 24, 2017. Positions of the Parties [ 5 ] This is my ruling regarding both co-accuseds’ application for a stay of proceedings under s. 24(1) of the Charter for unreasonable delay according to the parameters set out by the Supreme Court of Canada in Jordan and companion cases, Cody and Williamson , almost six years ago: R. v. Jordan , 2016 SCC 27 ; R. v. Cody , 2017 SCC 31 ; R. v.

Williamson , 2016 SCC 28 . [ 6 ] There are cites to cases in this decision. I will not always read out the full cite in these oral reasons, but in the event a transcript is ordered, I will place in any that are missing. [ 7 ] These four-day pretrial applications began 19 months and one day after charges were approved against co-accuseds Mr. Baruca and Mr. O'Brien, on August 7, 2020. A further nine to 11 pretrial applications, brought by Mr.

Baruca only, are scheduled to proceed on 12 days in June, three days in July, and two days in August 2022, and the trial itself is scheduled for 15 days in September and October 2022. The anticipated end of the trial is October 13, 2022, 26 months and seven days after the charges were approved. The matter has been scheduled for 36 days of court time. [ 8 ] In the alternative, both co-accuseds argue that the period of pre-charge delay, which was considerable in this case, 32 months and 15 days, between the arrest of Mr. Baruca and Mr.

O'Brien on November 24, 2017, and the approval of charges against them on August 7, 2020, should inform my analysis of post-charge delay in a qualitative sense. [ 9 ] A second argument made by both co-accuseds is that the pre-charge delay in this case amounted to an abuse of process, and they seek a finding that their s. 7 and s. 11(

d) rights were breached and that the remedy of a stay of proceedings under s. 24(1) of the Charter should follow. [ 10 ] There were two Crown making arguments to respond to these applications. Crown with conduct of the case since July 2019, Ms. Mann, responded to the Jordan delay argument. Ms. Mann conceded the delay was presumptively unreasonable. Crown's position was that there were discrete exceptional circumstances in this case and that the case itself is particularly complex, rendering the delay reasonable. Ms. Mann also argued that I should start to count the delay for Mr.

O'Brien from the day he was arrested on the charges, December 18, 2020, rather than the day he was charged, August 7, 2020. [ 11 ] Ms. Paulson, new Crown present on the case for the first time on March 8, 2022, when these applications began, responded to both aspects of the pre-charge delay argument advanced by Mr. Baruca and Mr. O'Brien. Ms.

Paulson first submitted that the abuse of process argument should be adjourned to the end of the trial, so that I could assess the impact of any alleged abuse on the fairness of the trial. [ 12 ] While I saw merit to this argument, I did not accede to it, since the argument had been set after three off-the-record pretrial conferences before a different judge, which occurred between December 2020 and March 2021. Both Crown and defence had agreed together with the judge to proceed in this manner.

The reasoning was that, as either of these applications could prove determinative to the outcome of the case, it made sense to hear them first. [ 13 ] Crown, Ms. Paulson, submitted that the two defence applications, one arguing for a judicial stay under s. 11(

b) for pre-charge delay, and the other arguing for a judicial stay under s. 7 and 11(

d) under the doctrine of abuse of process, are analytically distinct and should remain so. Ms. Paulson argued that the threshold for abuse of process is high and requires egregious offensive conduct on the part of Crown before it should be considered, and that bar had not been met in this case. Crown submitted that the law is clear according to the Supreme Court of Canada's decision in R. v. Hunt, 2017 SCC 25 , which affirmed the dissent of the Newfoundland Court of Appeal: R. v. Hunt , 2016 NLCA 61 .

According to the Newfoundland Court of Appeal in Hunt, c ourts have a supervisory jurisdiction to protect the integrity of the administration of justice, but this does not extend to assessing the efficiency of a police investigation, or to examining the Crown's charge assessment process.

Communication between Crown and police is protected by work product privilege. [ 14 ] There was a certain tension in the Crown's argument here because, while the main thrust was to suggest I should not be inquiring too deeply into any Crown or police processes, Crown nevertheless did provide some limited explanation for why it took so long to approve charges, the gist of which was,” work was ongoing”. The file did not go into abeyance.

[15] With respect to defence's argument that pre-charge delay should inform post-charge delay in a qualitative sense, Crown arguedthat this approach has been decisively rejected by this province's higher courts: R. v. Perkins, 2017 BCSC 2498, at paras. 21 to 27; R. v.Akumu, 2017 BCSC 896, at paras. 17 to 29; R. v. Kanda, 2021 BCCA 267, at paras. 103 to 108. Two Arguments Dismissed [16] Having set out the positions of the parties, I will address an argument made by each that I will dismiss at the outset: [17] I will start counting post-charge delay as of the date charges were sworn against Mr.

O'Brien, not the date of his arrest. In thiscase, as I have said, Mr. Baruca was arrested the day charges were sworn whereas Mr. O'Brien was arrested about four-and-a-halfmonths later. There was no evidence before me that Mr. O'Brien was evading service and no evidence about” other matters in the publicinterest reasonably necessitating a delay in effecting an arrest”: R. v. Virk, 2021 BCCA 58 at para. 35. [18] A five-judge panel of our Court of Appeal in Virk, at paras. 32 to 34, rejected the Crown's argument that post-charge delayshould start being counted at arrest, rather than the date charges are sworn.

I am bound by this decision, and also the guidance to similareffect of our Court of Appeal in R. v. Boima, 2018 BCCA 297 at para. 55, that the clock starts when charges are approved. Crown reliedon a case from Saskatchewan Provincial Court, R. v. Awasis, 2020 SKPC 41, for its contrary position, but that case is neither binding on,nor persuasive to, me. [19] With respect to defence's argument that I should consider pre-charge delay in my analysis of post-charge delay in a qualitativesense, this argument found support in two decisions of my colleagues, R. v. Brawn, 2021 BCPC 87, at para. 71; and R. v.

Ali-Kashani,2017 BCPC 358, at paras. 13 and 14. Both my colleagues' comments on this topic were obiter, as in neither case did the court “count”the pre-charge delay together with post-charge delay in its analysis, or indicate that it had weighed the pre-charge delay in a qualitativesense, in reaching a decision on the merits of a post-charge delay decision. [20] Our Court of Appeal, in a decision released after those of my colleagues, R. v. Kanda, decisively held the opposite, Kanda atparas. 63, 92, 106, 107. I am bound by this case.

Its holding on this point is in accordance with established precedent from the SupremeCourt of Canada in R. v. Kalanj (SCC), [1989] 1SCR 1594 at 1607, and other superior court authority in this province,R. v. Akumu, 2017 BCSC 896, at para. 26. [21] Further, in R. v. Perkins, 2017 BCSC 2498, Defence argued unsuccessfully that pre-charge delay should inform the s. 11(b)analysis. Even though the Perkins file did go into abeyance, Justice Ehrcke declined to consider the s. 11(

b) application from a dayearlier than the date the charges were sworn, at paras. 21 to 27. [22] In consideration of these authorities which are binding on me, I will not include pre-charge delay, in a qualitative sense, in myanalysis of whether the post-charge delay in this case is unreasonable. [23] Justice Ehrcke also considered an alternative argument that the pre-charge delay amounted to an abuse of process in the Perkinscase. Justice Ehrcke referenced Justice Lamer's comments at para. 945 of R. v. Mills, (SCC), [1986] 1 S.C.R. 863: Pre-charge delay is relevant under ss. 7 and 11(

d) because it is not the length of the delay which matters but rather the effect of the delayon the fairness of the trial. Pre-charge delay is as relevant as any other form of pre-charge or post-charge conduct which has a bearingupon the fairness of the trial. In other words, pre-charge delay is relevant to those interests which are protected by the right to a fair trialwhereas it is irrelevant to those which are protected by s. 11(b).

Similarly, pre-charge delay may be a relevant consideration under thedoctrine of abuse of process in the same manner as any other conduct by the police or the Crown which may be held to constitute anabuse of process. [24] Justice Ehrcke reviewed the law with respect to abuse of process at paras. 36 and 37 in the Perkins decision and concluded that itwas premature to find that the fair trial rights of the accused had been prejudiced before the trial, at para. 40.

Justice Ehrcke alsocommented about the two years of pre-charge delay in that case: As to the residual category, I can find no basis for concluding that the [Crown's] delay in laying the charges was occasioned by anyoblique or improper motive. (To do so) would be speculation: para 41. [25] Ultimately, Justice Ehrcke concluded there was no basis for finding an abuse of process or for staying the proceedings at para.51. Issues [26] So the issues remaining that fall to be determined by me on these applications are: 1. Is the post-charge delay unreasonable following the analysis set out in R. v. Jordan? 2.

Depending on the result of the foregoing analysis, was there an abuse of process in this case? Background [27] I am going to start with a background, with a chronology, of the case beginning with the police investigation and continuing tothe time leading up to the setting of the trial dates, and beyond. [28] Police investigated the two co-accused and five others, for six months, between May and November 2017. The investigation wasfor suspected drug importation and trafficking.

Police obtained judicial authorizations to track vehicles, did some undercover scenarios,and conducted 37 days of physical surveillance. [29] On November 24, 2017, police arrested Mr. Baruca and Mr. O'Brien in Mr. Baruca's vehicle. The two men were arrested for

possession for the purpose of trafficking. Inside Mr. Baruca's vehicle, police found two packages addressed to Mr. O'Brien, each containing approximately 500 grams of cyclopropyl fentanyl, an analogue of fentanyl. [ 30 ] Both men were interviewed. Mr. O'Brien admits the voluntariness of the statement he gave police. Both men were released without charges. [ 31 ] After the arrest, police obtained search warrants under the Controlled Drugs and Substances Act to search Mr. Baruca's residence and two vehicles. On November 25, 2017, the room at the Atrium Hotel where Mr.

Baruca had lived since 2015 was searched and police found evidence indicative of drug trafficking and importation. In the room were packages which had arrived from the Netherlands, Germany, and China. They were addressed to different individuals, but according to the hotel's manager, were always picked up at the front desk by Mr. Baruca.

One package found in the room contained approximately 544 grams of cyclopropyl fentanyl. [ 32 ] In the room, police also found approximately two kilograms of opium, $16,000 cash, and multiple empty chocolate bar and candy packaging, which police described as similar to other packaging which contained controlled substances, observed in the investigation. Police also found various documentary evidence linking Mr. Baruca to Canada Post boxes, Mr. O'Brien, and other shipments containing controlled substances.

Police also seized a box from the front desk of the Atrium Hotel containing over two kilograms of opium addressed to an individual police believed to be an associate of Mr. Baruca's. [ 33 ] On November 25, 2017, also pursuant to search warrants, police searched Mr. Baruca's two vehicles, the one in which he had been arrested with Mr. O'Brien the day before, and another that was parked at the Atrium Hotel. In the arrest vehicle, police seized three cellphones from the front passenger seat. A computer was seized from Mr. Baruca's room at the Atrium Hotel. Police got search warrants for all four devices.

Two of three cellphones were able to have data extracted and analyzed, as was the computer. The analysis of Mr. Baruca's BlackBerry cellphone was assessed as having particular evidentiary value. This analysis was complete by October 25, 2018. [ 34 ] Starting in early December 2017, counsel for Mr. Baruca, Mr. Swartz, was in communication with both Crown and police seeking an update on whether charges would be laid against Mr. Baruca. [ 35 ] Police forwarded their Report to Crown Counsel about seven months later, seven months after the arrest, on June 18, 2018.

This Report to Crown Counsel, at tab FF of Exhibit 1, is not paginated, but it is 377 paragraphs long. There were supplements to this initial disclosure package, up to and including in March 2019. [ 36 ] Crown spoke of disclosure received in September 2019. There was mention of it in the correspondence I reviewed, as well, but I did not learn specifically what it was.

This disclosure was not part of the supplements to the original Report to Crown Counsel that I could see. [ 37 ] In their June 2018 Report to Crown Counsel, police requested that Crown lay conspiracy charges against the co-accused and a third individual. Police also asked for criminal organization charges against the co-accused, the third individual, and unindicted co- conspirators. Investigative techniques over the six months included tracking vehicles, tracking Mr. Baruca's cellphone, production orders for Mr.

Baruca's cellphone, undercover scenarios, 37 days of physical surveillance, and after his arrest, search warrants for Mr. Baruca's residence and two vehicles. [ 38 ] Initially, Mr. Froess of the Crown office replied to the email queries from Mr. Swartz. In March 2019, Mr. Froess communicated that charges would be approved by June 2019, if not before. Crown with conduct at the time was Mr. Fast. Mr. Fast went on parental leave at the end of June 2019, and Ms. Davey and Ms.

Mann assumed conduct of the matter in July 2019. [ 39 ] In response to defence requests for an update on June 24, 2019, Crown replied on July 10, 2019, that new Crown had been assigned and they would provide an update, once they had familiarized themselves with the file. [ 40 ] On September 5, 2019, Crown once again advised that new Crown had been assigned and stated that police had provided additional disclosure. [ 41 ] Charges were approved on August 7, 2020, 32 months and 15 days after Mr. Baruca and Mr. O'Brien were first arrested on November 24, 2017. Mr.

Baruca was arrested on August 7, 2020, and released on bail on August 10, 2020. Mr. O'Brien was arrested December 18, 2020, and released on the same day. Both men remain out of custody. [ 42 ] On August 14, 2020, a week after his arrest and a week after charges against him were sworn, counsel for Mr. Baruca received the initial big package of disclosure. [ 43 ] On September 22, 2020, Crown disclosed the Information to Obtain package to counsel for Mr. Baruca. [ 44 ] On September 29, 2020, counsel for Mr. Baruca requested another copy of the initial disclosure which had been provided in August 2020.

Crown cited this requirement for a second set of initial disclosure as a discrete exceptional event in which delay was caused by defence. [ 45 ] At the first scheduled court appearance, October 14, 2020, counsel for Mr. Baruca appeared and advised the judge he was prepared to arraign the matter. Crown did not appear that day, so the matter was put over to October 23, 2020. An agent was meant to appear for the assigned Crown on October 14, 2020. On October 22, 2020, defence provided Crown with a time estimate and a list of potential pretrial applications. On October 23, 2020, Mr.

Baruca was arraigned. [ 46 ] During these months, the Provincial Court had implemented a mandatory pretrial conference for matters longer than a day. These pretrial conferences were off-the-record appearances in front of a judge. The purpose of a pretrial conference was to canvass resolution and, if that was not possible, case manage and prepare the matter for accurate trial scheduling. [ 47 ] Defence for Mr. Baruca provided available dates for the pretrial conference beginning on November 20, 2020. Crown provided

mutually available dates beginning on December 2, 2020. A pretrial conference was scheduled for December 14, 2020. After it took place, the trial schedulers emailed counsel requesting mutually available dates for a second pretrial conference. [ 48 ] A second pretrial conference was scheduled for February 8, 2021. In the meantime, on December 18, 2020, Mr. O'Brien was arrested and released, and he and his counsel, Mr. Lagemaat, were then included for the second pretrial conference. However, a third pretrial conference was scheduled after the February 8 pretrial conference, because counsel for Mr.

O'Brien had not yet received full disclosure, and also needed time to review what he had received in the initial package provided by Crown on January 13, 2021, about three weeks after Mr. O'Brien had been arrested. [ 49 ] In advance of the third pretrial conference, counsel for Mr. Baruca provided a trial plan on March 5, 2021. The third scheduled pretrial conference on March 5, 2021, did not go ahead for unknown reasons. It was scheduled virtually at 5:00 p.m. and all counsel were present. Counsel waited for 45 minutes, but the judge did not attend. [ 50 ] It was the case, however, that counsel for Mr.

O'Brien did not receive disclosure of the Information to Obtain package until March 11, 2021, so it may have been that the fourth and final PTC scheduled, the third substantive pretrial conference, scheduled for March 31, 2021, would have taken place in any event. [ 51 ] As the ITO package was provided to Mr. Baruca on September 22, 2020, it was puzzling that it was not disclosed to Mr. O'Brien until March 11, 2021, almost three months after Mr. O'Brien had been arrested on the charges. Crown, Ms. Mann, conceded this delay in disclosure, calling it "not ideal." [ 52 ] On March 22, 2021, Crown, Mr.

Fast, emailed Trial Scheduling asking when the court could likely accommodate six weeks of pretrial applications and three weeks of trial. The response from Trial Scheduling was "likely the spring of 2022, but the 2022 rota was not built yet”. [ 53 ] On March 30, 2021, counsel for Mr. Baruca asked Crown whether it was considering a direct indictment in this matter, so that Mr. Baruca could consider whether he would waive delay if a direct indictment were filed. [ 54 ] On March 31, 2021, after the final off-the-record pretrial conference, Crown, Mr. Fast, emailed Trial Scheduling to set trial dates.

Trial Scheduling advised that the 2022 rota was not available yet. About three weeks later, on April 22, 2021, after the 2022 rota was available, because judges had put in their vacation and education leave requests for 2022, these trial dates were scheduled. [ 55 ] On April 27, 2021, Crown Mr. Fast asked both defence counsel for their position on a waiver of delay. Counsel for Mr. O'Brien and Mr. Baruca advised by reply letters dated May 12 and May 24, 2021, respectively, that neither co-accused would waive delay. [ 56 ] Crown also asked both defence counsel for their position should Crown apply to sever Mr.

O'Brien from the information, and by May 28, 2021, both defence counsel had advised that they took no position. [ 57 ] At this point, the start of the pretrial applications in this case were 19 months and one day after the charges were approved, beyond the 18-month ceiling for matters in Provincial Court. [ 58 ] On May 26, 2021, Crown Mr. Fast wrote to Trial Scheduling, canvassing when a four-day trial for Mr. O'Brien alone could proceed. Trial Scheduling advised the earliest possible dates for that four-day trial were in November 2021. Mr.

O'Brien's counsel's earliest available dates were in the latter half of December 2021. Had Mr. O'Brien's charges been severed from those of Mr. Baruca then, and had Mr. O'Brien's trial alone proceeded in December 2021, Mr. O'Brien's delay from charge to the anticipated end of trial would have been 16 months and three weeks, approximately, under the Jordan ceiling for Provincial Court. [ 59 ] The dates that were set in April 2021 were set to accommodate up to 14 pretrial applications and allow the court time to decide in between.

The first four days were set in March 2022 for Crown to bring Vukelich applications and both defence to argue delay, pre and post charge, and abuse of process. [ 60 ] When the matter was being scheduled, three weeks were set aside notionally for the court to give its decision on applications. [ 61 ] Following that intention, on March 12, I requested counsel to look for the first mutually available date starting three weeks after I finished hearing the arguments. That date was April 1, 2022. In the result, the first mutually available date was three weeks after that, on April 22, 2022.

This is an example of how court scheduling and the mutual availability of three or, in this case, five lawyers and a judge can and does result in longer delays than intended on a regular basis. [ 62 ] Crown advised that it was only planning to bring one Vukelich application on February 8, 2022, in the final pretrial conference in this matter. Crown abandoned its Vukelich application on February 22, 2022. That application had been scheduled for two of the four days set aside in March 2022.

The remaining applications before me took up the four days scheduled. [ 63 ] Had all the scheduled applications proceeded, I expect there would not have been enough court time set aside, with the ensuing cascade of scheduling implications. [ 64 ] This is an example of how, even with careful consideration and forethought, time set aside for applications can be insufficient. Ideally, the Crown decision not to proceed with a Vukelich application ought to have been made before court time was set aside for it.

In the result here, fortuitously, although I do not think intentionally, the Crown's abandonment of its application two weeks before it was set to begin assisted the progress of the remaining applications to remain on schedule. [ 65 ] Twelve days were set in June 2022, for seven pretrial applications, all brought by Mr. Baruca, alleging breaches of his

section 8 rights by police over the course of their six-month investigation. Three days were set in July 2022, to address the implications of the rulings on the June pretrial applications for the Information to Obtain in support of the search warrants issued for November 25, 2017, then two days in August 2022, to argue section 24(2). Fifteen days were set in September and October for the trial itself. The trial was

scheduled to end October 13, 2022. In total, 36 days of court time have been set aside for this case. [ 66 ] I looked carefully at the materials submitted to date for the pretrial applications in June. There are seven currently before me, as I have said. I did that to assess the merits of the Crown's argument that this case is particularly complex, but in the course of doing so, I saw that the

schedule could pose challenges to decide and deliver decisions. This is because I have scheduled education leave and holiday time the last two weeks of July and the last two weeks of August. [ 67 ] There is just over a week between the end of the seven pretrial applications in June, which end June 21, and the start of the next scheduled pretrial application on July 4. The gap is June 22 to July 3. The July application cannot proceed without the outcome of all the June applications being known. These 12 days between June 22 and July 3 include two weekends and a statutory holiday, Friday, July 1.

That means there are only seven possible court days, June 22 to June 30, on which I could give a decision on these seven pretrial applications. [ 68 ] I expect I could deliver some of these decisions as I hear the applications in June, but I did note that the last scheduled application in June is set for four to five days and challenges the constitutionality of s. 99(1)(

a) of the Customs Act, as well as the legality of the searches conducted at secondary inspection by Canadian Border Service officers. So there is not only the time itself, which is short for the reasons I have explained, but coordinating the schedules of all counsel and the court to appear for the decision to consider. [ 69 ] A decision on the matter set for July 4 to 6 needs to be given before the hearing scheduled for August 2 and 3 can proceed. That decision also needs to be delivered in no more than seven court days between Friday, July 7, and Friday, July 15, and I make the same observation with respect to coordinating the

schedule of all counsel and the court to appear for the decision. The decision regarding the August 2 and 3 matter will need to be given before August 19. After that, I am away until the scheduled start of the trial, September 5. This time period is adequate, subject to the availability of all counsel to hear my decision, and it may be that any delays occasioned by scheduling challenges that could arise would all be delay that could be deducted in analysis, at the end of the day.

However, I say it all to say that October 13, 2022, is only the anticipated end of the trial. [ 70 ] Once the matter was assigned to me as a trial judge, I held pretrial conferences myself on June 2, 2021, September 8, 2021, December 10, 2021, January 14, 2022, and February 8, 2022, all but one on the record. The one that was not on the record was a mutual good faith error.

The purpose of these pretrial conferences was to familiarize myself with the broad outlines of the case, set deadlines for the exchange of affidavits and written materials, canvass any issues that had arisen and check into the progress of admissions. [ 71 ] The Crown at that first pretrial conference in June was Mr. Fast. Issues canvassed at that first pretrial conference included Mr. Baruca's Legal Aid eligibility and his upcoming extradition hearing. Mr. Baruca was arrested on an extradition warrant to the U.S. in September 2019, almost a year before these charges against him were approved. If extradited, Mr.

Baruca faces prosecution in the U.S. for an offence equivalent to the Canadian offence of conspiracy to traffic in a

Schedule I substance. The affidavit of Kathy Nomura, legal assistant to the Criminal Law and International Assistance

Section of the Department of Justice, sworn March 2, 2022, was Exhibit 5 in these applications. It further provided that Mr. Baruca's extradition committal hearing had begun before Justice Watchuk in B.C. Supreme Court on July 26 to 28, 2021, and continued on November 1 and 2, 2021. Justice Watchuk reserved her decision and it was expected, according to Ms. Nomura’s affidavit, on April 8, 2022. [ 72 ] At the June 2, 2021 pretrial conference, Crown advised that it may bring a severance application for Mr. O'Brien. Counsel for Mr.

Baruca asked if there would be a direct indictment on this file and Crown said it was still in works, but Crown was content to proceed as currently scheduled. [ 73 ] At the pretrial conference on September 8, 2021, the one off the record, my notes are that Crown, Mr. Fast, advised that severance of Mr. O'Brien was still an issue, but Crown was content to proceed as currently scheduled. Crown said he would work on admissions for the case with a plan to have them finalized by February 8, 2022, then five months away. [ 74 ] For the pretrial conferences in June and September, Mr.

Fast appeared for the Crown and advised that he and Ms. Mann had conduct of the case. In December 2021, Ms. Mann appeared for the Crown and advised that Mr. Fast was no longer on the case. Ms. Mann was joined at that appearance by an articling student. I learned that Mr. Baruca's Legal Aid funding was secure. [ 75 ] At that time, Ms. Mann advised that Justice Watchuk was expected to give her extradition committal decision in late January 2022. Once Justice Watchuk made her decision, Crown would assess the fate of these charges before the court.

These decisions are not made in advance, Crown explained, saying, for example, Mr. Baruca may decide to appeal the decision Justice Watchuk makes. Ms. Mann evinced a concern at this December pretrial conference about some of the time estimates for the applications scheduled to be heard in June, noting that it had not been settled yet between counsel whether evidence would be required to be called on some or all of them, or if any could proceed on the basis of a written record only. [ 76 ] At the January 14, 2022 pretrial conference, the Crown articling student appeared and advised that Ms. Mann was on leave.

Crown said Justice Watchuk's decision was now expected on March 1, 2022. Crown said it would decide whether and which Vukelich applications to bring, and try to prepare admissions for the February 8, 2022 pretrial conference. [ 77 ] At the final pretrial conference in February 2022, Ms. Mann appeared. Ms. Mann told me that another prosecutor, Ms. Paulson, would be replying to the abuse of process argument for the Crown. Ms. Mann was unaware that Mr. Fast had expressed the Crown's intention to have admissions finalized and signed by February 8, 2022, and so they were not completed by February 8, 2022.

Although Crown, Mr. Fast, had indicated in May, June, and September that Crown was considering applying to sever Mr. O'Brien's charges from the information and that this would happen before February 8, 2022, this did not happen. [ 78 ] On the first day set for these applications, as I have said, Crown, Ms. Paulson, applied for the abuse of process argument to be heard at the end of the trial, pointing out that I would be unable to assess the impact on the fairness of the trial of an alleged abuse of process without hearing the trial evidence. [ 79 ] Defence was opposed. Mr.

Swartz said further he had received an affidavit of the lead investigator from Crown the previous

Thursday, beyond the deadline set by me for the exchange of materials, and another one, that of a paralegal for Crown, just the daybefore the applications were set to begin. Defence asked for half an hour to review and discuss the paralegal's affidavit. Defence soughtto cross-examine the lead investigator on his affidavit. Crown was opposed to this, but if Defence's application to do so were granted byme, then that officer was only available on Friday, the last day of the four days set for hearing these two applications. [80] I denied Crown's application to postpone the abuse of process argument.

The abuse of process argument had been set in thespring of 2021, at the end of the three-and-a-half-month pretrial conference process, with the input and cooperation of all parties. Crownelected not to rely on the affidavit of the lead investigator.

Section 11(b) [81] I will address the s. 11(

b) argument first.

Section 11(

b) of the Charter provides: Any person charged with an offence has the right … (

b) to be tried within a reasonable time … [82] In Jordan and its companion cases, the Supreme Court of Canada sought to address the culture of complacency it identified ashaving arisen in the criminal justice system which frequently justified lengthy delays. Jordan held that all actors in the system have acollective responsibility to minimize delay. Jordan sought to eliminate the “complicated micro-counting” (para. 111) and “judicialguesstimations” (para. 37) that had been happening as a result of the previous framework for analyzing delay established in R. v.

Morin (SCC), [1992] 1 SCR 771. [83] In setting presumptive ceilings for the time cases should generally take in provincial and superior court, the Supreme Court ofCanada in Jordan included the intake requirements of the case as well as the increased complexity of these cases since Morin. [84] I am assisted by Justice Stribopoulus' helpful

summary in R. v. Brown, 2019 ONSC 6689 at paras. 12 to 18: [12] In Jordan, the Supreme Court of Canada revised the analytical approach for assessing s. 11(

b) Charter claims previouslyestablished in R. v. Morin. The Supreme Court endorsed the use of presumptive ceilings, recognizing 18 months as the ceiling for casesproceeding to trial in the provincial court, and 30 months for those in the superior court: Jordan, para. 46, 49, 105. [13] The analysis of claims under s. 11(

b) of the Charter begins by calculating the total amount of time that has elapsed from theinitiation of the prosecution until the end of the trial or the anticipated end of the trial. Once the total delay has been calculated, anydelay attributable to the defence must then be subtracted: Jordan, at paras. 47, 60. [14] Periods of delay attributable to the defence can take one of two forms. First, defence delay will include any periods that wereexplicitly or implicitly waived by the defence, but in either case, the waiver must be clear and unequivocal.

The second type of delayattributable to the defence is that which is caused solely by its conduct: Jordan at paras. 63-65. [15] After the total delay, less any defence delay, is calculated, the next step in the analysis requires a determination of whether theremaining delay – not caused by the defence – is above or below the presumptive ceiling: Jordan at para. 47, 66-67. [16] If the net delay exceeds the applicable ceiling, the delay is presumptively unreasonable.

The Crown may then attempt to rebutthe presumption of unreasonableness by showing that the delay is reasonable because of the presence of exceptional circumstances:Jordan, para. 47, 68-80. [17] The Supreme Court explained that “exceptional circumstances” lie outside the Crown’s control in the sense that (1) they arereasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel and the justice system cannot reasonably remedy the delaysemanating from those circumstances once they arise.

Importantly, the Supreme Court noted that such circumstances need not be “rare orentirely uncommon." [18] If the delay that remains after deducting any delay either attributable to the defence or that has resulted from exceptionalcircumstances that could not be mitigated, exceeds the presumptive ceiling, then the delay is unreasonable and a stay of proceedingsmust be entered: Jordan at paras. 47, 76, 103. [85] In Jordan, the Supreme Court did not catalogue all of the discrete events that could potentially qualify as “exceptional”,preferring to leave such determinations to the good sense and experience of trial judges: Jordan at para. 71. [86] Nevertheless, Jordan did provide some examples of what would qualify, including medical or family emergencies on the part ofthe accused, an important witness, counsel, or the trial judge: Jordan at para. 72. [87] The period of delay in this case is 26 months and seven days, to the anticipated end of the trial.

This exceeds the presumptive

ceiling by eight months and seven days. Under the new framework, the absence of prejudice and the gravity of the offence is irrelevant. Crown conceded that this delay is presumptively unreasonable. The onus then shifts to the Crown to rebut the presumption that has arisen. [ 88 ] Crown did not argue that there was any defence delay that ought to be deducted. Therefore, they agree that the net delay is the delay. I agree with this position taken by Crown.

Neither defence waived delay in this case, either implicitly or explicitly, nor did either defence in this case do anything to delay the case in the sense described at paras. 61 to 63 of Jordan, by using “deliberate or calculated tactics aimed at causing delay, such as frivolous applications and where the court and Crown are prepared to proceed, but the defence is not.” [ 89 ] Crown can rebut the presumption by showing there were exceptional circumstances that lie outside the Crown's control in the sense that (1), they are reasonably unforeseen or reasonably unavoidable; and (2), Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise: Jordan at para. 69 .

Were There Discrete Events that Should be Deducted? [ 90 ] I am first going to answer the question of whether there were discrete events that should be deducted. Crown argued that there were some discrete exceptional circumstances here, and that the case itself is exceptionally complex. As I have said, I will start with the discrete events. Like defence delay, discrete events result in quantitative deductions of particular periods.

The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable are to be deducted to the extent that they are incapable of being reasonably mitigated by the Crown and the justice system: Jordan at paras. 73, 75 ; Cody at para. 48 . [ 91 ] Crown argues that a mutual good faith error in scheduling the pretrial applications was a discrete event that should be deducted from the overall delay in this case. Specifically, counsel for Mr. O'Brien was unavailable in April and May 2022, when these dates were set in April 2021.

That unavailability was taken into account in scheduling the June dates, but it ought not to have been. Crown, both defence, and the trial schedulers all missed this detail. Mr. O'Brien's counsel's availability did not matter, as Mr. O'Brien was not participating in any of the pretrial applications set after March 2022. [ 92 ] Crown submits those two months should be deducted from the overall delay in this case, which would bring the delay down to 24 months and seven days, still six months and seven days above the presumptive ceiling.

Even if I accept that this scheduling error, a mutual good faith human error, could be included in what the Supreme Court of Canada meant when it spoke of “reasonably unforeseen or reasonably unavoidable circumstances”, I founder at the next step of the analysis Jordan requires. Once this error was discovered, that was when it might have been mitigated. [ 93 ] Could not, or should not Crown, working with trial schedulers and defence counsel for Mr. Baruca, have tried to reasonably remedy the delays emanating from those circumstances once they arose?

I do not have any evidence of attempts made to mitigate this error and change the scheduling once it was discovered. It seems to me that this absence of evidence of trying to reasonably remedy the delays disqualifies Crown from asking that this period of time be deducted as a discrete exceptional event. [ 94 ] Jordan requires discrete events are to be deducted to the extent that they are incapable of reasonably being mitigated by the Crown and the justice system. This error was discussed in the first pretrial conference in front of me in June 2021 at pages 5 and 6, but that was all.

Further, I have no evidence that any dates earlier than June 2022 were available to all remaining parties. [ 95 ] Also, Crown, as I have said, argued I should deduct two months of delay for this. Deducting the entire two months would not be reasonable, I do not think, because at least three weeks were set aside for my decision on these applications and then a period of time would be reasonable for counsel to consider the decision here and prepare fully for the upcoming seven applications. As Ms.

Mann had indicated in December 2021, it was not yet settled between counsel whether evidence would be required on all seven applications or whether some of the applications could proceed on the basis of written materials.

At the most, perhaps two weeks to a month of delay might have been the result of this human error, but this is speculation on my part, to be avoided. [ 96 ] My conclusion is that I am not prepared to deduct any delay here, because to do so asks me to make assumptions with no evidence in support, and lacking any basis to conclude that the error, once discovered, could not have been reasonably mitigated by the Crown and the justice system by going back to the trial schedulers, advising of the error, and seeing if it could make a difference to the scheduling. [ 97 ] Crown also argued that counsel for Mr.

Baruca requesting a second copy of initial disclosure in September 2020, and requesting a copy of disclosure for Mr. Baruca in January 2021, were discrete events that occasioned delay and ought to be deducted from the net delay in this case. I am unable to accede to that submission. Providing disclosure to defence, even providing a second copy, and providing a copy for the accused himself, would seem to me to be part of the intake requirements of a case included in the Jordan ceilings, but I also lack evidence as to what was required and what would be reasonably required for the Crown to produce this disclosure.

How long did it take? [ 98 ] I accept Crown had to do this, and did it, and that it would have been extra in some sense to do so, but I lacked an evidentiary basis to connect it to causing actual delay in the case. Crown said resources were diverted each time, but diverted from what, and how that impacted the delay to the anticipated end of the trial was not explained.

The first additional disclosure was requested before the first scheduled appearance in court on the matter on October 14, 2020, and was received by defence on October 20, 2020, before the arraignment hearing. [ 99 ] There were no disclosure-related adjournments sought by Mr. Baruca and no applications for further disclosure. I cannot conclude that these defence requests caused delay in the sense that they impacted the progress of the case from charge to trial. As Justice Willcock observed at para. 85 of R. v.

Lai, 2021 BCCA 105 : … the simple fact that a circumstance lies outside the Crown’s control does not make the circumstance exceptional. That fact is a necessary but not sufficient condition. If it were sufficient, all legitimate defence actions that are outside the Crown’s control would be

regarded as exceptional. Many legitimate defence actions that cause delay are part of the trial process, must have been considered in setting the ceiling, and should not be characterized as exceptional. [ 100 ] Here, I would characterize asking for a copy of disclosure for Mr. Baruca in January 2021 as a legitimate defence action and, to the extent that it caused delay, which I found myself unable to assess, I would not characterize that as exceptional.

I would also observe that even if I am wrong in not guesstimating and deducting periods of delay for these discrete events identified by the Crown, it would not bring the net delay in this case anywhere close to 18 months. Is The Case Particularly Complex? [ 101 ] I move on to whether the case is particularly complex. Jorda n uses the term "particularly complex." In R. v. Lai , 2021 SCC 52 , but originally a decision from B.C. Supreme Court, 2018 BCSC 867 , Justice Schultes’s comments that what the Court is describing is a level of complexity consistent with “megatrials or their equivalents”.

In Jordan at para. 77 , the Court comments: Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. [ 102 ] In relation to the nature of the evidence, relevant factors include voluminous disclosure, a large number of witnesses, significant time requirements for expert evidence, and charges covering a long period of time: Jordan at para. 77 . [ 103 ] The Supreme Court of Canada trusts trial judges to be able to assess the complexity of cases.

Our Court of Appeal has commented: Trial judges must decide each case on its facts to determine whether the matter is sufficiently complex to qualify as an exceptional circumstance: R. v. Singh , 2016 BCCA 427 at para. 85 . [ 104 ] Jordan cautions against resorting to the label of "particular complexity" too readily. Cases which meet this definition are expected to be rare. [ 105 ] This case had 5,000 pages of disclosure. That is voluminous, but the assessment of whether a case is particularly complex is not a quantitative, but a qualitative exercise: Cody at para. 64 ; R. v.

Roberts , 2020 BCCA 307 at paras. 83 -87 . Our Court of Appeal in the Roberts decision also observed that a trial judge needs some evidence capable of supporting a conclusion that the delay is attributable to case complexity. [ 106 ] As I noted, there are no signed admissions yet in this case. Crown advised it currently anticipates calling 36 witnesses at the trial and this number may diminish further. [ 107 ] I am hampered in assessing whether the evidence in the case will be complex because I have heard very little about the nature of the evidence.

Crown plans to call a drug expert at the trial, but Crown did not claim significant time requirements for expert evidence in this case. The charges with respect to Mr. O'Brien cover one day, and four weeks for Mr. Baruca, so the charges do not cover a long period of time. [ 108 ] Regarding the nature of the issues, relevant factors include numerous charges, numerous pretrial applications or disputed issues, and novel or complicated legal issues that will impact on the complexity of the case: Jordan at para. 77 . There are 11 counts on the Information. Mr. Baruca is charged with 11, Mr.

O'Brien, his co-accused, with four. There were initially 14 pretrial applications. Crown withdrew its Vukelich application on February 22. Two were heard and are the subject of this decision. [ 109 ] To assess whether the case is particularly complex, I have reviewed the material I have regarding the seven further pretrial applications, and the Crown reply to them. 1. Video Seizure from the Atrium Hotel –

Section 8 – 2 days in June. 2. Personal Information obtained from Passport Canada -

Section 8 – 1 day 3. Personal Information obtained from the Atrium Hotel –

Section 8 - 2 days 4. Personal Information obtained through the Canada Border Service Agency and the Vancouver Fraser Port Authority –

Section 8 – 1 days 5. A Challenge to the Constitutionality of s. 99(1)(

a) of the Customs Act – 4-5 days in June. 6. Package Interceptions –

Section 8 - 3 days in June. 7. Detention of, and Search of Mr. Baruca's cellphone by Canadian Border Service Officers- Sections 7, 8, 10, and 32 of the Charter – 4 - 5 days in June, and this would be heard concurrent with the challenge to the constitutionality of the Customs Act , so those two four to five-day applications coincide or would overlap. [ 110 ] I observe here that an estimated 13 to 14 days of hearings are scheduled for 12 court days in June. [ 111 ] Crown is requiring Mr. Baruca to establish his reasonable expectation of privacy for each

section 8 application. [ 112 ] With respect to Defence application number 2, regarding the obtaining of a passport photo of Mr. Baruca without a production order, Crown seeks to distinguish the holdings of the B.C. Supreme Court in R. v. Flintroy , 2018 BCSC 1777 , at para. 44 , that obtaining a person's passport photo by making a request to a government agency is a breach of that person's

section 8 right; see also R. v. Kang , 2020 BCSC 1237 , at para. 10 and para. 94.

[ 113 ] With respect to Defence applications numbers 1 and 3, video seizures from the Atrium Hotel and collection of information about Mr. Baruca from an employee of the Atrium Hotel, Crown seeks to distinguish the finding in R. v. Latimer , 2020 BCSC 488 , at para. 222 , that multi-unit buildings are not “self-contained evidence preservation units” that police can access without prior judicial authorization. [ 114 ] To summarize, the six-month police investigation in this case proceeded largely without prior judicial authorization for the gathering of information and evidence against Mr. Baruca.

Police were given information and assistance because they asked for it. Defence challenges the legality of those searches. Police seized video footage from the Atrium Hotel, received information about Mr. Baruca from the manager of the Atrium Hotel, obtained a passport photo without a production order, requested and received information from the Port Authority, got a package from Canada Post, and requested CBSA to intercept and open packages, and “flag” Mr. Baruca. [ 115 ] The evidence gathered in this manner provided the basis for the Information to Obtain and search warrants that issued to search Mr.

Baruca's residence and two vehicles on November 25, 2017. The applications for which I do not yet have materials will challenge those warrants. Crown seeks to distinguish the B.C. Supreme Court rulings against the Crown in Flintroy , Kang , and Latimer , and relies on lower court authority in other provinces to do so. [ 116 ] Of the remaining scheduled applications, I find the challenge to the constitutionality of the Customs Act does increase the complexity of the case. It is, however, not novel. Defence relies on the Canfield decision from the Alberta Court of Appeal which found s. 99(1)(

a) of the Customs Act to be unconstitutional: R. v. Canfield , 2020 ABCA 383 . [ 117 ] While this case was most certainly complex to schedule, I do not think that automatically means it is a particularly complex case. [ 118 ] Crown advised the investigation involved confidential informers. This is a public interest privilege, of course. I know nothing further about that, even in a general sense, or how it might have impacted the complexity of the case. The Crown submits the case has cross-border implications, but any case alleging importation of narcotics would.

Otherwise, this case involved the use of some judicially authorized investigative techniques and physical surveillance over six months, but many cases do. [ 119 ] Each case turns on its own facts, but I have also considered cases which courts have found to be particularly complex and I find them distinguishable from this case. R. v. Singh , 2016 BCCA 427 , was a transitional exceptional case, under Jordan . It was found to be particularly complex. It was a multiparty conspiracy to import cocaine over multiple jurisdictions, provincial and international. Brown was found in obiter to be particularly complex.

Eight co-accused faced charges of importing cocaine, possessing proceeds of crime, drug- related offences, and conspiracy to import firearms at the outset of that case. The fact that, at the end, the case remaining was the one against Mr.

Brown and it took six days of trial, the judge credited counsel for their diligence and professionalism, but initially the case was particularly complex and the judge found it so. [ 120 ] By contrast, the Lai case, 2018 BCSC 867 , was found not to be particularly complex despite 17 counts, voluminous disclosure, two accused, three victims, multiple pretrial conferences, and pretrial applications, at least three expert witnesses and 45 potential witnesses. Justice Schultes drew a distinction between a case with some very complex elements and a particularly complex case. [ 121 ] With respect to Mr.

Baruca, I find the case is complex, but it is not particularly complex. With respect to Mr. O'Brien, I find the case against Mr. O'Brien is not complex. The evidence against Mr. O'Brien alone would take an estimated four days of trial. Mr. O'Brien is only participating in these two pretrial applications. [ 122 ] Caselaw has been clear that where Crown chooses to prosecute accused jointly, it has the obligation to remain vigilant to the s. 11(

b) rights of each accused: R. v. Vassell , 2016 SCC 26 at paras. 4-5 . I have found the case not to be particularly complex against either co-accused. That means the presumption of unreasonable delay is not rebutted. [ 123 ] In the event that I am wrong about this conclusion, if a case is particularly complex, the Crown still has the responsibility of helping to ensure that the trial takes place within a reasonable time. The Crown is expected to develop a concrete plan in such cases to minimize the delay resulting from its complexity.

The Crown may need to consider whether jointly trying co-accused together will serve to unduly complicate the prosecution. Should the Crown fail to develop and implement a concrete plan to minimize delay, it will be unable to make a showing of exceptional circumstances because it will fail to establish that the circumstances were beyond its control. Jordan speaks of the Crown having to take steps to minimize or mitigate delay. [ 124 ] Once the dates were set in April 2021, Crown asked if Defence would waive delay and they would not. Crown asked for the Defence's position on severing Mr.

O'Brien from the information. Both Defence replied and said they took no position on that application. Crown did not bring an application to sever Mr. O'Brien. The fact that Crown was considering doing so, distinguishes this case from the ones where courts in other cases have said: “it was clearly in the interests of justice that the case proceeded with no severance”. [ 125 ] Crown argued that the Defence could have applied to sever Mr. O'Brien and that the obligation to avoid delay is one of all participants in the process, not just the Crown.

While the general observation is true, how Crown was applying it here is an argument I do not accept. Crown was considering applying to sever Mr. O'Brien at a point in time where the delay Crown was looking at was presumptively unreasonable, shifting the onus to it, to do everything it could to lessen the time to trial for either co-accused. [ 126 ] Crown also did not choose to file a direct indictment. This is, of course, within Crown's discretion to do or not do. Defence for Mr.

Baruca did ask the Crown in May 2021, once dates were set and it was clear the case would not even begin before the Jordan ceiling had elapsed in Provincial Court, whether the Crown would file a direct indictment in the case. In September, at the pretrial conference, my notes are that the Crown did say a direct indictment was in the works, but the Crown was content to proceed as scheduled. [ 127 ] Crown argued that cases go both ways as to whether Crown filing a direct indictment would abuse the court's process. In reply, Mr. Baruca's counsel produced the R. v.

D.J.H. case, 2021 BCSC 1340 , at para. 54 , in which Justice Schultes held that the Crown, finding itself up against the Jordan ceiling in Provincial Court, did not abuse the court's process by filing a direct indictment to bring the case to Supreme Court. In other words, there is authority binding on me in this province that the filing of a direct indictment in cases

where the Jordan ceiling will be reached and exceeded in Provincial Court is a valid strategic decision and not an abuse of the court's process. Crown did not have a concrete plan to minimize or mitigate delay here and would be disqualified from relying on the particular complexity of the case in these circumstances. [ 128 ] I have found the delay in this case for both co-accused to be 26 months and seven days from charge approval to the anticipated end of trial. Jordan is clear that this is unreasonable delay. The answer to the first issue, whether the delay in this case is unreasonable, is yes.

According to Jordan , the remedy is a stay of proceedings under s. 24(1) of the Charter . Given the answer to this question, I find it is not necessary to consider whether the 32 months and 15 days of pre-charge delay in this case constituted an abuse of process. I direct a stay of proceedings on all 11 counts of Information 255128. (RULING CONCLUDED)